Most people file for bankruptcy in the hopes of getting a fresh financial start. Bankruptcy can allow consumers to discharge certain debts and restructure others, making them less of a month-to-month burden. And even before you achieve a discharge through Chapter 7 or Chapter 13, filing for bankruptcy can give you some much needed breathing room, thanks to protections including the automatic stay.
So, what can you do if creditors or debt collectors continue to try to contact you over debts, even after you’ve received a discharge?
It’s a more common scenario than you might think for debtors to continue getting intimidating phone calls and letters, even after discharging their debts through bankruptcy. This could be due to negligence or error on the part of the debt collector, or it could be because a “bad apple” is willfully pushing the limits and attempting to collect on a discharged debt. In either case, it’s important to understand that you have options.
Protections During and After Bankruptcy
As a consumer facing debt, it’s important to understand all of the protections you have available to you. On the day-to-day, debtors are offered certain protections by the Fair Debt Collection Practices Act (FDCPA), which is designed to help curb and eliminate some of the “abusive, deceptive, and unfair debt collection practices” that occur in the industry. FDCPA stipulates when and how a third party debt collector may make contact with you. For instance, the law states that if you retain an attorney, then future debt collection efforts must go through your legal professional, preventing debt collectors from contacting you directly.
Just as importantly, filing for bankruptcy offers consumers some strong protections from harassing creditors and debt collectors, including the automatic stay.
The Automatic Stay
When you file for bankruptcy, the automatic stay prohibits virtually all debt collection activity, including legal action, wage garnishment, and contact by phone or mail. It is important to note that the automatic stay may not apply to some exceptions, including criminal cases and child support actions. Generally speaking, the automatic stay only applies to pre-bankruptcy debts, and will not necessarily shield you from debts incurred after your bankruptcy case was filed.
The automatic stay is a strong form of protection against creditors, but it is not unheard of for some creditors to continue to try to make contact or enforce collection efforts. Again, this could be due to error (i.e., if the creditor does not yet know that you have filed for bankruptcy), or due to willful disregard on the part of the debt collector. If a creditor attempts to collect on a debt in violation of the automatic stay, consumers may first seek to notify the creditor, to correct the error. If the creditor persists, the debtor may notify the bankruptcy court, which can sanction and penalize the creditor. In other cases, it may be possible to work with an attorney to collect penalties or damages through a separate lawsuit.
As the bankruptcy case proceeds, the filer will generally conclude their bankruptcy with a discharge of debt; in Chapter 7 bankruptcy cases, this generally occurs within a few months, while in Chapter 13, it may take three to five years, following the successful execution of a structured repayment plan.
Receiving a bankruptcy discharge frees the debtor of their liability for the debt. This means that once the discharge has been issued, relevant creditors will be barred from contacting you or otherwise making attempts to collect on the debt.
Debt collectors cannot try to collect on debts that were discharged in bankruptcy. However, there are some important caveats to keep in mind.
First, it’s important to remember that not all debts can be automatically discharged in bankruptcy, and debtors may still be liable for certain debts at the end of their bankruptcy, including tax obligations, domestic obligations (like child support and alimony payments), and fines and penalties relating to criminal activity. It’s also crucial to note that debtors may still continue to enforce any liens associated with a secured debt after bankruptcy, which might include repossessing and selling your collateral. Finally, bear in mind that if your bankruptcy case ends in a dismissal, rather than a discharge, creditors may resume debt collection efforts immediately.
If creditors are continuing to make contact about a debt even after you have successfully discharged it, your most effective course of action may be to consult with your bankruptcy attorney, who can provide guidance on how to proceed. In many instances, simply preparing and sending a letter to the creditor informing them of the discharge may be enough to get them to halt the collection action immediately. If the creditor or debt collector refuses to stop violating the discharge injunction, your attorney may recommend taking legal action, or seek to reopen the bankruptcy case in order to have the creditor sanctioned.
Want to Keep the Conversation Going?
Have any more questions about any aspect of bankruptcy or debt collection? Want to discuss the details of your personal situation with an experienced Chicagoland attorney? If you’re seeking answers or want to get a handle on your unique circumstances, don’t hesitate to get in touch with the Gunderson Law Firm to continue the discussion.
Whether you are a business owner, a wage earner, retired, or otherwise, we can address your specific situation with strategic plans to help put severe indebtedness behind you so you can enjoy life again. Our professionals possess unparalleled expertise and insight, bolstered by years of experience and valuable connections with many of the top real estate and financial professionals in Chicagoland.
Above all else, we are committed to providing the advocacy you need without the attitude you don’t. If you have found other lawyers to be more about their egos than about your case, talk to Gunderson Law Firm. Our attorneys are not only highly knowledgeable and experienced, but very down-to-earth. We’re all about great representation and timely results, tailored to your specific needs. Don’t hesitate to drop us a line whenever you’re ready to keep the conversation going.